Ombudsman Recognizes Immigrant and Non-Immigrant Employees Should Have Standing, No Guidance From USCIS

The Office of Citizenship and Immigration Services Ombudsman (the "Ombudsman") presented their 2016 annual report yesterday. Our office aims to highlight one unsettled issue regarding the rights of the employee to have standing as the beneficiary in the I-140 and H-1B petitions. We have received numerous inquiries from beneficiary employees regarding their rights and their lack of information about their own cases. At this time, unfortunately, we must continue to reluctantly turn them away by stating that they have to communicate their issues with their employer.

USCIS must be made aware that deciding whether the employees have standing in their own cases is a pressing issue and must move forward on providing guidance to the stakeholders.

In the event that the petitioner-employers fail to cooperate with the beneficiaries in providing notices or answering the Requests for Evidence (RFEs), then the beneficiaries are left in the dark about their immigrant statuses. Without this information, beneficiary-employees would be unable to make informed decisions about their lives. Decisions that U.S. Citizens take for granted, such as where to move to next month, do I need to go to another country, where would my children go to school, would be on hold for them.

While the Ombudsman is aware of this issue, USCIS still has not moved forward in determining how immigration attorneys can advocate for beneficiary-employees when their employers are refusing to cooperate.

Legal Support For Employee's Rights
The America Competitiveness in the Twenty-First Century, S. 2045 Act (AC21) and The White House Report, Modernization and Streamlining Our Legal Immigration System For the Twenty-First Century, published July 2015 (the Modernization Report) both support the idea of providing the beneficiary-employees with the right to receive notices directly from, and to respond directly to, USCIS.

AC21, Section 106(c), specifies that an "alien has the right to receive a notice of action on an I-140 once an accompanying adjustment of status has been pending for 180 days or more. Furthermore, once this right to notice vests, an alien may provide evidence in response to a request for evidence or notice of any other adverse action on the underlying visa petition." Additionally, even if a beneficiary changes employers, any unadjudicated adjustment of status that has been pending for at least 180 days will continue to be the basis for permanent residence. The AILA-USCIS Benefits Liaison Committee Memorandum, published March 18, 2004, explains that "so long as the initial petition was bona fide and non-frivolous, no further inquiry may be had regarding the employer’s ongoing ability to pay or intent..."

The Modernization Report states that "[w]hile waiting for these immigrant visas, many nonimmigrant workers may be effectively prevented from changing jobs or receiving promotions, thus hindering natural career progression and the ability to make other long-term life plans. This stagnancy for years on end not only negatively impacts the beneficiary’s economic stability, but also impacts the economic growth of local communities and our nation." Thus, allowing the employees more power in their own immigration processes would allow more employee mobility, which would lead to increases in this country's economic growth.

As such, both the AC21 and the Modernization Report recognizes that employer-employee relationships may breakdown during the time that it takes for USCIS to adjudicate the I-140 and the adjustment of status. Furthermore, to prevent the employee from working on his/her own case or to prevent him/her from searching for another employer without jeopardizing his/her immigration status is to keep him from the simple liberties that U.S. Citizens often take for granted, the freedom of employment mobility, the freedom to determine what happens to their lives and the lives of their families.

Our immigration law office continuously receives inquiries from employees regarding what they should do when their employer-employee relationship breaks down and they want to find another job. There is currently no progress towards allowing them to independently get notices, talk to USCIS regarding their petitions, or answer their RFE's, We join the Ombudsman in urging USCIS to move towards allowing the employees themselves to take action for their cases and to give the employees a voice.

Follow us on Twitter (@ZLImmigration), Facebook (zlimmigration), or LinkedIn as we track this development.

H-3 Visa As An Alternative to H-1B

As promised in my tweet earlier, here is a report on the H-3 visa as an alternative to H-1B. First of all, special thanks to Margaret Holland-Sparages, a Senior Associate at Deutsch Williams, for sharing your experience and knowledge with the attendees. It really is a great and under-utilized program and I will very likely be suggesting this program to those of my clients that are concerned about the H-1B quota and the H-1B rejections. Below is a brief background of the program and why this program should be considered.

Background

Under INA Section 101(a)(15)(H)(iii), H-3 visas are granted to temporary workers "invited by an individual or organization for purposes of receiving instruction and training 'in any field of endeavor...other than graduate medical education or training.' The training program must be one that is not designed primarily to provide productive employment." Chapter 5, Kurzban's Immigration Law Sourcebook, 14th Ed.  

In order for your H-3 petition to be approved, among many other requirements, you must prove that the beneficiary cannot obtain the training in her own country, that the program does not exist in the her own country, and that it is unique to the degree in the U.S. You also must prove that the H-3 beneficiary will not be a productive member of your company, due to the required training process. Importantly, you must show that this training program is required for a number of employees at the company and was not implemented just for the purpose of obtaining the H-3 visa. 

This Program Should be Considered Because...

As every immigration practitioner and every H-1B-dependent employer recognizes, H-1B is an exhausted program. For many years, the 65,000 quota has been filled within the first week of April. This leaves many qualified foreign nationals here on F-1 status with no options but to return to their home countries upon the expiration of their F-1 status. Simply because of the inadequacy of our H-1B program, many talented individuals leave the U.S., leading to a waste of our resources as we spend to train them only to have them leave and contribute to the growth of other countries. Without an expansion of the H-1B quota and without considering the alternatives, the decision of which talented individual stays and which one leaves is left to chance (i.e. the H-1B lottery).

The H-3 program should be utilized for many reasons. I name only a few here. First, the lives of international students and the well-being of the U.S. economy is too important to leave to chance. Second, the high demand for STEM talent is vastly unsatisfied and H-3 can help fill that gap. Last, but definitely not the least, this program will provide these highly qualified individuals a chance to stay and another chance for the H-1B lottery or an alternative employment-based visa at a later year.

Even if your beneficiary has been selected in the H-1B lottery, there is another level of review to see whether he/she meets the requirements of H-1B. If she is ultimately denied the H-1B, the H-3 program should also be considered in order to allow her to stay here and utilize her talents, for the same reasons mentioned.

Training and The STEM OPT Extension

As mentioned above, in order to use the H-3 visa, the foreign national must be here for a training program. The training requirement should be easily satisfied for a F-1 beneficiary who has been here for 12 months of OPT. The main argument to use is that 12 months is not nearly enough to fully train someone for the workforce. Of course, the evidence provided to prove that would be different for each case.

However, please note that the USCIS will deny the H-3 visa if the beneficiary already possesses substantial training and expertise in the proposed field of training. This raises the issue of the new 24 month STEM OPT Extension. It will be substantially more difficult to argue that the H-3 beneficiary still needs further training after three years in her field of specialty. However, Mrs. Holland-Sparages suggested the wonderful idea of arguing that new training is needed because of technological advancements or new scientific discoveries, which is definitely not a problem in the STEM fields!

In creating the training program for the H-3 petition, it should state the reasons that the training is required to extend to a specific length of time beyond the OPT period. Moreover, there are many other requirements that should be outlined, such as the kind of training to be given, the level of supervision to be given, and the structure of the program. These issues should be considered with an immigration attorney. we would be able to talk about exactly how to draft the training program to meet the needs of the H-3 program.

Zhang-Louie, Immigration Legal Counsel is a semi-virtual immigration law practice in Cambridge, Massachusetts. Embedded in Cambridge's innovative culture. we understand that particularly for startups, human resource issues such as where to find the next qualified employee can be daunting. We are here to provide you guidance and counsel on hiring globally so that you can focus on growing your business. 

Pokémon Go, the Masuda Method, and Immigration

Pokémon Go was released a little less than two weeks ago and it is already the most reported subject in the history of Google.  I am a Millennial, and like many Millennials out there, we were the first to learn of these mythical creatures almost 20 years ago.  We have all dreamed of one day capturing them all.  Today, that dream is almost a reality.  These little pocket monsters simply show up in front of us when we turn on our phones!

But, the question now is how do we really capture ALL OF THEM?  Sure, there are ways to travel within your country to catch as many as possible.  Experts say that you have a higher chance of catching water Pokémon near bodies of water, fire Pokémon near the desert, and some Pokémon are just everywhere.  If I see another Rattata...

But how do you capture the truly rare ones...like a Shiny?

What is a Shiny? 

Blue Gastly? That would be a Shiny!

Shinnies first appeared in Generation II, Gold and Silver.  From my limited knowledge, shinnies are extremely rare Pokémon that appear as a different color from the regular Pokémon, for example a green Rattata or...a gray Jigglypuff.  These can be caught either in the wild or by cross-breeding internationally through the Masuda Method (appropriately named in Japanese: 国際結婚 international marriage).  The chances of catching them in the wild is about 1 out of 8192 in the older games.  However, tech blogs are hinting that these will be available in Pokémon Go.

The Masuda Method
The Masuda Method appeared in Generation IV (2007 - Diamond, Platinum, Pearl - way after my time), named after Junichi Masuda, the Game Freak director who inserted the method into Diamond and Pearl.  The Masuda Method requires the breeding of two Pokémon of different genders and from different regions (the game recognizes this by registering the different language of the Pokémon's name).  This method increased the likelihood of getting a shiny by SIX TIMES.

If this method is to work in Pokémon Go, we would need to not only implement trading between players of the same country but also to enable players to trade internationally and to catch Pokémon all over the world.  With the way this game is developing, this feature just might be a reality sooner than we think.

If the need for international travel becomes a reality in this game, the U.S. Department of State provides a number of visas to travel to the U.S. with plenty of time to travel through the country and catch all the Pokémon with English names you need.

Visa Waiver Program
The Visa Waiver Program allows visitors from certain countries to travel to the U.S. without obtaining a visa, as long as they obtain approval from the Electronic System for Travel Authorization (ESTA).  Visitors from qualified countries can visit for tourism or business reasons for up to 90 days!  As such, visitors from countries such as South Korea, Italy, Japan, and Singapore can visit the U.S. with very little government-mandated travel preparation.  See the Department of State's website for more information and for a complete list of countries qualifying for the VWP.  However, the same legal requirements under B-1 (business) and B-2 (tourism) visas apply; most importantly, the foreign national must prove non-immigrant intent.  So, you should speak with an immigration attorney regarding which facts would show that your stay in the U.S. is only temporary.

Visitor's Visas
If your home country is not listed as a VWP country, you can still enter and stay in the U.S. for up to 90 days.  For more information, visit our website.  If you ultimately discover that you need more time to catch all the Pokémon in the country, you can file I-539 to extend your stay.  However, both the length of extended stay and the approval of your extension request are subject to the adjudicator's discretion.  As such, we would highly advise that you have an alternative reason for the extension request, perhaps something other than that you need more time to catch them all, however pressing that task may be.


Disclaimer: This post is for firm marketing purposes only. The poster does not claim to be an expert in the game Pokémon Go in any way and apologizes for any misstatement in the functionality of the game. However, we welcome comments to correct any misstatements or any thoughts on the post.

Zhang-Louie, Immigration Legal Counsel is a semi-virtual immigration law practice in Cambridge, Massachusetts. We advise startups on hiring and retaining global talent so that they can focus on growing their business. 

EB-5 for Startups and Entrepreneurs

For EB-5's, most investors or business people think of large real estate development projects, having $500K or $1 million in money readily available to invest, and immediately creating those 10 jobs that are required to get permanent residence. This is largely a generalization of this underutilized program.

If you are a foreign national considering starting a business here in the U.S. and you would like to eventually obtain permanent residence, an EB-5 immigration path is worth considering. Here are some of the issues that you should consider with an immigration attorney at the outset.

Loans as a Legal Source of Funds
You do not need to have the entire $500K or $1 million readily available, you may take out loans in order to invest in your business. However, you must own the assets that you use to collateralize the loan. USCIS will frequently issue Requests for Evidence (RFEs) requesting more information on your ownership of the collateral if your application shows that your source of funds includes loans.

For example, if you own real property and are thinking about either selling the real property to obtain funds or using the property as collateral, USCIS will want to see documentation showing that the property was initially obtained with legitimate funds. If you are using the property as collateral for your loan, USCIS will additionally request documentation of the loan or the mortgage contract and documentation to show that the value of the property is such that it will support the amount of the loan. 

Incremental Investments
If you do not have the funds for an EB-5 investment initially, you can invest in your business in incremental investments so that your total investment meets the $500K or $1 million required for an EB-5 petition. This strategy is beneficial for startups that do not have the funds initially but grow to become profitable later. For EB-5 investment purposes, entrepreneurs have the option to use the profits from the business and reinvest back into the business, so as to add to the total amount invested in the business.  

Word of caution for those using this strategy: investors still must prove that the source of funds came from them personally, not from the business. As such, investors must show that they have taken a distribution from the profits of the company as their own income and then reinvested that distribution back into the business.  

No Time Limit For Job Creation
The requirement that the 10 jobs must be created within 2.5 years is a common misconception. There is no requirement that 10 jobs must be created at the time of the filing of I-526, or even at the time of filing for I-829. The purpose of the EB-5 is economic development. USCIS understands that for startups, it may take years for them to sustain 10 jobs. For startups then, the focus of USCIS's inquiry shifts to whether the business will continuously and increasingly sustain "full-time" and "permanent" positions.

The employees that qualify for "full-time" must work at least 35 hours per week for your business. With all the other business issues that startups often face, it is understandable that EB-5 requirements may fall to the wayside. However, if you are or are considering using your business as a EB-5 investment to get your permanent residence, ensure that you maintain the documents for those that are hired from the beginning (i.e, the pay stubs and the job descriptions of your employees). This will make the EB-5 approval process much less cumbersome. 

Qualifying Relationships 
Many startups turn to friends and family for assistance in running their business. While the EB-5 regulations do not restrict you in who you can hire, it requires that the business must create "full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the immigrant and the immigrant's spouse, sons, or daughters)." INA §203(b)(5)(A)(ii) (as quoted by Susan L. Pilcher in "Preserving the EB-5 Option for the Entrepreneur: Strategic Considerations for Startup Counsel," Immigration Options for Investors and Entrepreneurs, 3rd Ed. 2014). 

Immigrants "lawfully authorized to be employed in the United States" include conditional residents, temporary residents, asylees, refugees, or aliens remaining in the United States under suspension of deportation. 8 CFR §204.6(e). Therefore, you may not use your immediate family members or any one here on non-immigrant work visas such as H-1Bs or L-1s to count towards the jobs creation requirement.  

Zhang-Louie, Immigration Legal Counsel is a semi-virtual immigration law practice in Cambridge, Massachusetts. Embedded in Cambridge's innovative culture. we understand that particularly for startups, human resource issues such as where to find the next qualified employee can be daunting. We are here to provide you guidance and counsel on hiring globally so that you can focus on growing your business.